H. & H. Reiners, Respondent, v. John Niederstein, Appellant

H. & H. Reiners, Respondent, v. John Niederstein, Appellant. Appeal from a judgment entered on a short decision — scope of review in the absence of an exception and of a certificate that the case contains all the evidence—deeds to remove defects in title executed subsequent to the commencement of an action for specific performance — a pi-cmdon of the contract, not merged in the judgment. . An appeal from'a judgment entered upon a decision filed pursuant to. sec ion 1033 of the Code of Civil Procedure, stating concisely the grounds upon which the issue was decided, brings up for review only the questions raised by exceptions to the rulings, where no exception to such decision was filed and the case on appeal does not embrace a certificate that it contains all the evidence, or all of the evidence upon the questions sought to be reviewed. In an action to compel.the specific performance by the defendant of a contract to purchase a bond and mortgage from the plaintiff, in which the plaintiff’s title is objected to on the ground that the premises were charged with a legacy and were also subject to an inchoate right of dower, a quitclaim deed executed by the legatees and a release of the alleged inchoate right of dower, both of which were executed subsequent to the commencement of ,the action, are admissible in evidence. It seems, that a provision in the contract sought tobe enforced for four successive renewals of the note agreed to be given by. the defendant inpayment, is not impaired by a judgment decreeing specific performance of the contract, notwithstanding the fact that the provision for renewals is not inserted in the judgment. Appeal' by the defendant, John Niéderstein, from an amended j udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of January, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term decreeing specific performance of a contract to purchase a bond and mortgage, except .from so. much of said judgment as awards the sum of seventy-five dollars to the defendant for an examination of the title to the premises described in the complaint. John Brunnemer, for the appellant. Ira Leo Bamberger, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This is an action for specific performance of a contract of the defendant to purchase a bond and mortgage. The Special Term filed its decision, stating concisely the grounds upon which the issue was decided, and directing judgment for the plaintiff pursuant to the procedure authorized by section 1022, Code of Civil Procedure, and this was done. The defendant failed to file any exception to such decision, as provided for. in the said section of the Code, and the case does not contain any certificate that it contains all of the evidence, or all of the evidence upon the questions sought to be reviewed. This point is made . by the appellant, and we are concluded from any review of the facts or of the law, save as raised by the exceptions to the rulings. (Otten v. Manhattan R. Co., 150 N. Y. 395, 399; Frederick v. City of Johnstown, 47 App. Div. 222; Waydell v. Adams, 23 id. 508,) As to the latter point, see Rosenstein, v. Fox (150 N. Y. 354, 359). One of the objections to the plaintiff’s title was that the premises were charged with a legacy for $500. The plaintiff offered in evidence a quitclaim deed executed by the legatees of the premises after this action was com-rnenced, tendered it to the defendants, and offered to insert therein the name of the defendants. “ Objected to by defendant; objection overruled, defendant excepts.” There is no error in this ruling. (Haffey v. Lynch, 143 N. Y. 241, 247, 248.) There was also objection that the mortgaged premises were subject to an inchoate right of dower. The plaintiff offered in evidence a release of such dower, executed subsequent to the commencement of the action. “ Objected to by defendant, objection overruled.” There was no-error. (Haffey v. Lynch, supra.) A witness was called by the plaintiff, and was asked whether he was the person who executed the quitclaim deed then in evidence. “ Objected to;, objection overruled.” I fail to see any force in the exception. I have now noticed all the exceptions that appear in the record:. The defendant urges that the judgment is' erroneous, in that it compelled payment by defendant to the plaintiff without directing an assignment to the defendant of the bond and mortgage. As I read the judgment, it does so provide. The delivery adjudged involves an assignment. It is alleged that the judgment is erroneous, in that it ordered the defendant to execute and to deliver the note that was the - payment provided for by the contract, payable in six months, in that said note would have matured before the signing of the judgment. Were it not for the fact that no exception is filed to the decision, and that thereby we are precluded from modifying the judgment, there would be much force in this criticism of the appellant. However, the contract provides for four successive renewals of the note, and this privilege, in part, is still open, to the defendant notwithstanding that the provision for renewals is not inserted in' the judgment. The provision for notice in case of renewal must be reasonably construed so that defendant be not precluded from giving such notice by the fact that at the time of the judgment the original debt is in terms actually due. The judgment should be affirmed, without costs. All concurred. Judgment affirmed, without costs of this appeal to either party.